HOUSE BILL NO. 359 "An Act relating to conspiracy to commit human trafficking in the first degree or sex trafficking in the first degree; relating to the crime of furnishing indecent material to minors, the crime of online enticement of a minor, the crime of prostitution, and the crime of sex trafficking; relating to forfeiture of property used in prostitution offenses; relating to sex offender registration; relating to testimony by video conference; adding Rule 38.3, Alaska Rules of Criminal Procedure; and providing for an effective date." 1:41:39 PM JOSEPH MASTERS, COMMISSIONER, DEPARTMENT OF PUBLIC SAFETY, introduced himself and others present. Co-Chair Stoltze congratulated Deputy Attorney General Rick Svobodny for his 30-plus years of state service. Commissioner Masters thanked the committee for hearing HB 359. He explained that the bill furthered the state's efforts to strengthen laws that protect children and hold offenders accountable. He expressed strong support for the legislation. He discussed that many sections of the bill reflected a change in terminology from "promoting prostitution" to "sex trafficking"; the change made important distinctions by accurately describing the criminal act and using terms that were more common within law enforcement nationwide. The bill was more respectful of the victims who were lured and coerced into the sex trade by offenders. He stated that the crimes were occurring in Alaska and young girls/children were targeted and forced into the sex trade by traffickers. Changing the title of the crime would help lessen the shame and stigma many of the victims had associated with experiencing the crimes. He quoted from a statement Governor Parnell made when he presented the bill: The crimes of sex trafficking and human trafficking are serious offences, which violate the most basic human rights and deprives victims of every shred of personal freedom. Commissioner Masters relayed that the crimes were often perpetrated by offenders working together including, human and sex trafficking in the first degree. The list of felony offences acknowledged the reality and allowed individuals who conspired to commit the crimes more accountable under the state's conspiracy laws. He noted that Attorney General Michael Geraghty and Mr. Svobodny would provide further detail on the legislation. 1:45:06 PM MICHAEL GERAGHTY, ATTORNEY GENERAL, DEPARTMENT OF LAW, echoed Commissioner Masters' testimony. He stated that the bill was a priority of the governor and should be a societal and legislative priority as well. He expressed that the department looked forward to working with the committee on the legislation. He highlighted items in the bill: Section 4 addressed concerns raised by a U.S. district court judge decision regarding the distribution of indecent material to minors; the judge had found the law to be over-broad and unconstitutional. Co-Chair Stoltze asked who filed the cases on behalf of sexual predators. He wondered what had taken place that led to the court challenge. Attorney General Geraghty believed that the American Civil Liberties Union (ACLU) had challenged the law the prior June as drafted in the specific case. He explained that as the law applied to an individual the language turned into "and as applied challenge to the law." Co-Chair Stoltze remarked on his earlier question related to who had filed the case. Mr. Geraghty replied that the ACLU had thought the law was too broad and had challenged it. He believed that the deficiencies in the bill had been corrected and that it was constitutionally enforceable. He addressed that Section 6 increased the penalty for a patron of a prostitute to a Class C felony when the prostitute was a minor and the patron was 18 years or older and at least three years older than the minor. The department believed that a higher penalty for adults was appropriate when the person paid to have sex with a minor who could be participating in the trade against their will. There were other sections that dealt with videoconferencing of witnesses, given the state's obligation to establish competency of defendants, many of whom were in rural Alaska; other logistical issues existed including arranging testimony from professionals such as psychiatrists. Mr. Geraghty recognized Mr. Svobodny for his 35 years of service and shared a related story. 1:49:57 PM RICHARD SVOBODNY, DEPUTY ATTORNEY GENERAL, CRIMINAL DIVISION, DEPARTMENT OF LAW, discussed that the core of the information discussed by Commissioner Masters and Attorney General Geraghty was on page 5, line 9, which changed the nomenclature for promoting prostitution. Representative Guttenberg asked for clarification of the bill version. Co-Chair Stoltze replied that the bill up for consideration was a House Judiciary Committee CS. Vice-chair Fairclough MOVED the bill before the committee. Mr. Svobodny continued to explain that the changes beginning on page 5, line 9 appeared in Sections 7 and 11 of the legislation. The provisions dealt with the crime of promoting prostitution in the first through fourth degrees. He addressed that the bill changed the term associated with the crime of promoting prostitution to "sex trafficking," which recognized that there was a victim. He discussed that provisions 1, 2, 7, 14, and 17 through 23 changed the term from "promoting prostitution" to "sex trafficking" in other statutes (i.e. the term promoting prostitution was changed to sex trafficking under Title 47 related to defenses that may be waived to adult court). Mr. Svobodny pointed to the importance of a section that began on page 3, line 6 of the bill, which added the crime of human trafficking to the list of serious felony offences. The crime was different than sex trafficking and includes labor slavery and adult entertainment using coercion or force where a person is brought into the state for the specific purpose. He elaborated that the state could bring a conspiracy charge for serious felony offences; conspiracy involved a group of people that gather together to plan to engage in the illegal activity. Co-Chair Stoltze queried whether a recent case involving a person in Chugiak/Eagle River who had brought in entertainers and held their passports fell under the scope of the bill. Mr. Svobodny answered in the affirmative. He continued to provide detail on the legislation. There were not many of the cases because the main witness was the person engaging in prostitution; the bill provided another tool to prosecute people without needing the victim to be present. 1:56:30 PM Representative Wilson questioned whether the department believed that every prostitute was a victim. Mr. Svobodny replied in the negative; however, a significant portion of young people were victims because they needed shelter and ended up being forced to sell themselves in order to make money for the person who took them in. He acknowledged that there were also individuals who voluntarily engaged in prostitution; however, there were a substantial number of young people that were victims and victimized. Co-Chair Stoltze surmised that by statute, minors who engaged in sexual activity with adults would be considered victims. Mr. Svobodny agreed. He detailed that the bill did not take away the ability to prosecute people for sexual abuse of minors. The age of consent in Alaska was 16 and increased to 18 if the person was in a position of authority; because of the law regarding position of authority it was sometimes possible to prosecute pimps for sexual abuse of a minor. He furthered that the cases were hard to prove because they involved examining a pattern of conduct including, inducing a person to move away from their home, keeping them away from responsible adults, depriving them of a phone and communication, creating dependence for food and shelter, and other. The bill provided the necessary tools to prosecute such cases. He discussed that two years earlier the legislature had changed the statutes related to providing indecent materials to a minor at the governor's request; the change resulted from a lawsuit the ACLU had filed against the state. He expounded that the federal court determined that under current statute there were explicit sexual materials that could be distributed to minors; the bill resolved the problem of the "over breadth" issue by making the intent to sell the materials to a minor a crime including when the distributor knew or believed that the person was under the age of 16. 2:01:20 PM Mr. Svobodny explained that Sections 5 and 6 dealt with a change in law related to prostitution. He believed that prostitution had been made illegal in Alaska in 1954 and it had become a criminal offense to be a patron of a prostitute in 2006. The bill increased the penalty provisions to a Class C felony when the patron is over the age of 18, is three years older than the prostitute, and the prostitute is under the age of 18. Currently the act of prostitution and the patronage of a prostitute were a Class B misdemeanor. The House Judiciary Committee had included a provision that allowed a case to go to a jury if the patron asserted that he/she had a reasonable belief that the prostitute was 18 years of age or older; similar language was used related to sexual abuse of minors. The language essentially meant that a patron would have needed to card a prostitute in order to have a valid defense. 2:04:39 PM Representative Doogan asked for an explanation of the sentence "another person that the person believes" (page 4, line 7). Mr. Svobodny explained that the sentence applied to a person distributing the [indecent] material to a person that they believe is under the age of 16. Representative Doogan surmised that the words "another person" referred to the first person [responsible for the distribution of materials]. Mr. Svobodny responded in the affirmative. Representative Wilson asked for verification that under the proposed legislation a 20 year-old could be charged as a felon unless he could prove that he believed the prostitute was over the age of 18. Mr. Svobodny replied in the affirmative. He restated that a person could be charged with a felony if they were over the age of 18, were three years older than the prostitute, and the prostitute was under the age of 18. Representative Wilson asked for verification that a 17 year-old would be charged as a juvenile and with a misdemeanor, but a person who was 20 or 21 years of age would be charged as a felon. Mr. Svobodny answered that a 17 year-old would not be charged with a misdemeanor and would be charged as a delinquent in children's court. He elaborated that the punishment could range from "go home and stay with your parents to two years in a locked institution" depending on the youth's history and ability to be rehabilitated. 2:08:21 PM Representative Wilson questioned how a person would go to court to say that they "knowingly or reasonably" thought that the prostitute had been over the age of 18. Mr. Svobodny answered that the state would bring a charge of prostitution and the accused would need to prove the elements of the offence to a jury beyond a reasonable doubt. He detailed that the burden would shift to the defendant if they chose to raise the defense that the prostitute looked over the age of 18. The defendant would then be required to show how they had determined that the person was over 18 years of age (i.e. checking ID, asking the prostitute's friends, or other). The defense would acquit the defendant of the underlying offence if [he/she] convinced the jury that [he/she] had believed the prostitute was above the age of 18. Representative Wilson wondered whether he had ever heard that a person had asked for identification from a prostitute. She was uncomfortable with the provision and believed that 20 and 21 year olds were still children. She concluded that unless the patron asked for ID, they would be guilty of a felony. Mr. Svobodny replied that in the context of sexual abuse of a minor the specific defense was used frequently. He explained that a defendant could convince a jury by saying something like "she looked to me like she was 21. She told me she was 19. I asked her girlfriends how old she was, they said she was 18"; however, the defense would not be plausible if it was obvious the person was under the age of 18. 2:10:58 PM Representative Joule wondered about the ability to plea bargain related charges. Mr. Svobodny answered that approximately 93 percent to 97 percent of cases nationwide ended with plea negotiations. In Alaska people could engage in plea negotiations for sex offences, but they were still required to be included in the offender registry. He believed that it was a "fact of life" in the U.S. that most cases would be resolved through plea bargains. He reiterated that given concerns by the legislature and governor, he did not allow sex offences to be reclassified as another type of offense such as a burglary. Representative Joule agreed that the reality [related to plea bargains] was a sad fact. Co-Chair Thomas commented on two fish violations that had been prosecuted by the state recently: the individual who plea bargained received a smaller fine than the person that plead guilty. He wondered why the state would plea bargain on an offense when it had proof of guilt. Mr. Svobodny replied that he would be happy to discuss the cases once he had all of the information. Co-Chair Thomas responded that the Department of Fish and Game had video of the offence for the individual who had received a plea bargain. He told a personal story. Mr. Geraghty clarified that the state tried cases that had to be tried and did not agree to any plea bargains simply because it did not want the expense or could not afford to try them. He detailed that experienced attorneys understood how the cases were typically resolved; without the agreement of the judge the plea bargain was rejected and the case may go to trial. He stated that the reality was that most cases were plea bargained, which was an appropriate result when there were experienced prosecutors. He stressed that the state would not agree to any deals "simply for the sake of cutting a deal." He was happy to look into the specific case and he appreciated the point. Co-Chair Thomas did not think it was necessary to look into it; however, he did not believe a plea bargain should be allowed when there was evidence of an offence. He told a personal story about a fine he had received. He referred to the $4000 fine the fisherman had received and opined that it was too small. 2:19:53 PM Representative Doogan pointed to Section 6 language that read "Prostitution is a Class C felony if" and asked what the current crime was. Mr. Svobodny responded that under current statute, provision A specified that it was a Class B misdemeanor for a person to solicit or engage in sex for money. Provision C in the legislation related to prostitutes who were under the age of 18. He relayed that the bill did not change the penalty unless the prostitute was under the age of 18, there was a three-year age difference between the prostitute and the patron, and whether the patron acted reasonable to determine the age of the prostitute. Representative Doogan understood, but did not agree. He pointed to an escalation of charging that had been occurring. He opined that all crimes would be a Class C felony or higher if the current rate continued. He was not convinced that the specific set of circumstances justified the charge. Representative Gara remarked that a person's belief that a crime should be classified as a less serious offence did not mean that they did not think it was a crime. He opined that the person committing the most egregious offense was the patron who hired a prostitute under the age of 18. He wondered whether the crime level should be raised for the "John" or "pimp." Mr. Svobodny pointed to Sections 7 through 11 and explained that the existing offences were strong. He detailed that the bill would change the term from "promoting prostitution" to "sex trafficking." He agreed that the offence was probably more serious and had been considered that way since the legislature passed the statutes in 1978. He believed that promoting prostitution ranged from an unclassified felony to a Class C felony. Mr. Geraghty added that Section 7 talked about sex trafficking including, inducing a person under the age of 18 to engage in prostitution, which would become a Class A felony under the legislation. Mr. Svobodny clarified that the offence was currently a Class A felony. Mr. Geraghty remarked that current law already punished the pimp more seriously. Representative Gara noted that he had asked the question in relation to Representative Doogan's comment. Co-Chair Stoltze asked for verification that Section 6 addressed the "John" and Section 7 addressed the agent. Mr. Svobodny believed that promoting prostitution in the first degree was currently a Class A felony. 2:27:20 PM AT EASE 2:34:56 PM RECONVENED Mr. Svobodny relayed that currently the prostitute or patron were each guilty of a Class B misdemeanor. Section 6 of the bill increased the penalty to a Class C felony if the patron was over the age of 18, three years older than the prostitute, and the prostitute was under the age of 18. Co-Chair Stoltze wondered whether the following age ranges were examples of the three-year age difference: a 20 year- old with a 17 year-old; a 19 year-old with a 16 year-old; and an 18 year-old with a 15 year-old. He asked about the terms related to a person over the age of 18. Mr. Svobodny replied that it was midnight on a person's [18th] birthday. The offense was a Class B misdemeanor if the patron was 19 and the prostitute was 17. Representative Gara asked why it was more "gross" to have a 21 year-old hire a prostitute that was just under the age of 18 versus a 50 year-old hiring an 18 year-old. Mr. Svobodny replied the administration's position is that a line needed to be drawn somewhere. The goal was to create a greater protection for people under the age of 18; it was not the grossness factor, but the protection of children factor. 2:40:35 PM Representative Gara understood that the line was that the person was a minor. Vice-chair Fairclough believed that the administration was trying to place the burden on a person who was older and had more experiences with the difference between right and wrong. The purpose was to stress that an adult should not have sex with a minor. She opined that the intent of an increased penalty was to make an adult think twice and ask for ID if the person could be under the age of 18. Mr. Svobodny added that the discussion was about an adult engaging in a conduct that was already illegal. The goal was to target individuals who went to prostitutes with the idea that they wanted somebody very young. Mr. Svobodny directed attention to Section 12, which specified that the promotion of prostitution in the first through third degrees did not require corroboration and could rely on one person's testimony; the bill added the promotion of prostitution or sex trafficking in the fourth degree. Under current law property was subject to forfeiture when it was used to promote prostitution; the bill added the crime of prostitution to the list of crimes. He added that the House Judiciary Committee had narrowed the scope to Class C felony prostitution. Section 15 was conforming. Section 16 would allow witnesses to testify via videoconferencing related to the competency of a defendant. Mr. Svobodny relayed that Section 19 was a conforming amendment that dealt with trafficking. Section 25 included a rule change that would allow videoconferencing under special circumstances where a witness was found by the court to be unavailable for trial (i.e. individuals serving in the military out-of-state and other). The videoconferencing represented a savings of time, money, and limited resources. He added that there was a special statute that applied to sex cases related to children. Sections 26 through 27 related to the effective date. 2:47:12 PM Co-Chair Stoltze clarified that there were no retroactive effective dates. Mr. Svobodny agreed. Representative Gara asked at what point did the penalty for sex trafficking increase based on the age of a prostitute. Mr. Svobodny replied that the age was 18 for promotion of prostitution in the first degree; it was an unclassified felony if the prostitute was under the age of 18 and it was a Class A felony if the prostitute was over the age of 18. Representative Gara asked for verification that the penalty was an unclassified felony if the prostitute was under the age of 18 and a Class A felony if the prostitute was over the age of 18. Mr. Svobodny replied in the affirmative related to the promotion of prostitution in the first degree; it was the most egregious form of a person bringing a person into the prostitution trade. Representative Gara believed the age should be 21 and would discuss it further when amendments were introduced. LIEUTENANT RODNEY DIAL, ALASKA STATE TROOPERS, DEPARTMENT OF PUBLIC SAFETY (via teleconference), voiced support for the bill. 2:50:25 PM JOSHUA DECKER, ATTORNEY, AMERICAN CIVIL LIBERTIES UNION (ACLU)-ALASKA (via teleconference), referred to email testimony that had been submitted by ACLU Executive Director Jeffrey Mittman. The ACLU had concern that Section 16, which allowed video conferencing in competency hearings, violated the confrontation clauses of Alaska's Constitution. The union anticipated that the state would be presented with facial challenges as well as challenges by individual defendants, resulting in "needless" legal expense. Representative Gara asked for verification that Section 8 limited the circumstances where video conferencing was allowed. He clarified that he had meant Section 16(h). Mr. Decker replied that Section 16(h) listed circumstances in which video conferencing was available. The agency believed that the circumstances were over-broad and outside the baseline the U.S. Supreme Court had established in the Maryland v. Craig decision. He explained that the reason for depriving a criminal defendant of their right to in- person, face-to-face confrontation had to be a need to further an important public policy; federal courts had determined that items such as convenience, cost savings, and efficiency did not meet the test. The agency had determined that the section as drafted was outside the minimum standards that had been set forth by the U.S. Supreme Court and would expose the state to constitutional challenges. Co-Chair Stoltze asked whether the ACLU would sue. Mr. Decker replied that he could not answer the question and that the ACLU took litigation decisions one-by-one as they came. Co-Chair Stoltze referred to language that the "the court may at the court's discretion." He wondered whether there were "run-away" courts in Alaska. Mr. Decker did not believe the bill or testimony impugned the integrity of the courts. The agency's concern was that the language would be inconsistent with requirements of the U.S. Constitution and potentially the Alaska Constitution. Representative Gara remarked that it was a constitutional principle that allowed defendants to be face-to-face with the accuser. He surmised that the principle should also apply to a competency hearing. He believed that if a person was presented with the possibility of a life jail sentence that the accuser should be present in person for the judge to determine whether the person was telling the truth. Co-Chair Stoltze invited the Court System to provide any commentary as the bill included a court-rule issue. 2:55:04 PM Vice-chair Fairclough thought the video conferencing was currently allowed for children and had been upheld by the supreme court. Mr. Svobodny replied that the Alaska Supreme Court had upheld two-way videoconferencing with children; there was a statute that allowed for the video conferencing when the court determined that it would be detrimental to the child to appear in court. He remarked that the situations were slightly different. The competency hearings were slightly different as well; competency hearings in the Ninth and Fifth Circuit Courts in California were civil matters and not criminal matters. He stated that competency hearings were pre-trial matters, which could result from the request of the court, the state, and the defense. He furthered that there were a significant number of different items related to a competency hearing versus a trial; the supreme court had ruled that in relation to competency hearings there was not a Fifth Amendment right or a Sixth Amendment right as it related to counsel (the Sixth Amendment right of confrontation had not been addressed). Co-Chair Stoltze CLOSED public testimony with the option to reopen it at a later time. Mr. Geraghty looked forward to the committee's consideration of the bill. Commissioner Masters echoed Attorney General Geraghty's remarks. He expounded that the bill was aimed at increasing protection for children in the state; many of whom were 15 to 17 years of age. In addition to changing the statutory definition of the crime to sex trafficking, the bill also provided additional protections to youths. Representative Gara asked whether Section 16 (that waived in-person witness requirements in a competency hearing) would impact the fairness for a defendant in cross examination. QUINLAN STEINER, PUBLIC DEFENDER AGENCY, ANCHORAGE (via teleconference), responded that the constitutionality of the two-way video conferencing in the state had not been determined. He stated that if the law passed the legitimacy would be challenged. He believed that there were strong arguments stating that confrontation should apply because it was a criminal proceeding. He observed that there were arguments on the other side as well. The relevant policy questions were convenience and money versus reliability of the fact finding process; cross examination was best done in person and was a critical part of ensuring that a court was presented with the best evidence. Co-Chair Stoltze remarked on the occurrence of revictimization. HB 359 was HEARD and HELD in Committee for further consideration. 3:01:57 PM AT EASE 3:04:15 PM RECONVENED